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🎙️ New Episode of The Full Court Press — R. v. P.P. and the Problem with Assumptions
In this episode, we break down R. v. P.P., 2025 ONCA 243—a case that’s more than just a reversal of convictions. It's a real-world application of the Supreme Court’s decision in R. v. Kruk on when appellate courts can step in on credibility findings. We talk cultural assumptions, credibility missteps, and yes—a trial judge’s late-stage “Freudian slip” theory that went way offside. Plus, a nod to the father-son legal team who argued the case—and won. 🎧 Tune in for sharp legal analysis with just the right dose of procedural drama. rss.com/podcasts/the-full-court-press/1966124/
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In this episode, Nate breaks down R. v. Ahmadi, a 2025 decision from the Ontario Court of Appeal, focusing on a key evidentiary issue: when an accused’s out-of-court statements can be used against them.
The Court draws a sharp line between disbelieving a statement and finding it was fabricated. Only fabricated statements—with independent evidence backing that up—can be used as circumstantial evidence of guilt. We talk through how Ahmadi’s ever-changing police interview crossed that line, how the trial judge handled it, and why the ONCA upheld the conviction. A must-know case for anyone running—or challenging—post-offence statements. Plus, a lawyer joke to send you off smiling. https://rss.com/podcasts/the-full-court-press/1957751/ Title: Presumed Innocent: The Supreme Court’s Ruling on Prison Discipline
Length: ~5 minutes In this episode, Nate and ChatGPT break down the Supreme Court of Canada’s landmark decision in John Howard Society of Saskatchewan v. Saskatchewan (2025 SCC 6). The Court ruled that serious prison disciplinary proceedings—those that can result in segregation or loss of earned remission—must meet the criminal standard of proof beyond a reasonable doubt. rss.com/podcasts/the-full-court-press/1957445/ In this episode, criminal defense lawyer Nate Jackson and co-host ChatGPT break down two fresh decisions from the Ontario Court of Appeal — R. v. Arora and R. v. James.
We talk fake guns, real trauma, and whether pleading guilty still buys you anything (Arora), then shift gears to police overreach, Charter breaches, and the cost of ignoring the rules (James). Quick, punchy, and packed with insights — plus a closing legal joke, because why not? Tune in. Court is in session. https://rss.com/podcasts/the-full-court-press/1957501/ Hello everyone!
I'm thrilled to announce that I'll be experimenting with AI models here at The Full Court Press to dive deep into criminal law topics. This new venture aims to bring a fresh, dynamic approach to discussing complex legal issues. I'll be using AI to provide insights, answer questions, and offer perspectives that can help simplify and clarify criminal law concepts. Stay tuned as we explore how AI can help break down legal jargon and provide a clearer understanding of the law! I’m excited to see where this experiment leads. Cheers, Nate (and yes, this post was created via ChatGPT... I'm not actually "thrilled" to announce this. I'm intruiged more than anything as an AI skeptic but, for better or for worse, a curious AI skeptic. Let's see what happens...) The takeaway: A court-appointed amicus curiae lawyer has a limited, but important, role in cases in which they’re assigned. They must uphold a duty of loyalty to the court and act as a lawyer of, and for, the court. Their functions cannot go against the duty of impartiality. The big picture:
In a case for two counts of frst-degree murder, Mr. Kahsai sought to represent himself. He regularly disrupted proceedings and failed to meaningfully advance a defence for himself or help move the matter along. The trial judge thus determined that it was essential to appoint amicus curiae in order to ensure Mr. Kahsai’s fair trial. This lawyer was appointed to cross-examine witnesses, though he was instructed not to advocate for Mr. Kahsai. Mr. Kahsai continued to be disruptive and resisted the court-appointed lawyer, deciding to be uncooperative. After Mr. Kahsai was convicted of the charges, he appealed on a number of grounds, including an unfairness brought upon by the trial judge’s failure to appoint amicus with an adversarial role earlier on in the trial. These appeals were dismissed. The Supreme Court held here that the trial judge has the discretion, broad in scope, to appoint amicus with specifc powers that suit the case at hand. While it may be open to the trial judge to appoint a more partial amicus, the trial judge should consider several factors in determining the scope and the partiality of the amicus. These factors include looking at the trial in its whole context: the nature and complexity of the charges, whether it is a judge-alone or jury trial, the attributes of the accused, what the assistance is needed for (whether that be to test the Crown’s case or advance a defence), and what assistance the Crown and trial judge can provide. Ahead of an appointment of amicus, the trial judge should canvass with the parties about the necessity of the appointment and the potential scope. The role of the amicus can be restricted by the rights of the accused to conduct their own defence (though this constitutional right is not absolute). Amicus appointments can also be restricted by other factors: They cannot be used to circumvent the inability to secure counsel at legal aid rates and the role cannot be given scope that conficts with the amicus role of loyalty to the court. Ultimately, in this case, the Supreme Court held that the discretionary decision made by the trial judge was appropriate in the dificult circumstances of a strenuous trial. Given that the accused had insisted upon advancing his own defence, the trial judge appointed an amicus with a limited role to help move the proceedings along. There was no irregularity found here to advance a finding of a miscarriage of justice, and the appeal was thus dismissed. Blog Post By: Gabe Nisker
The takeaway: Courts need to be careful about the use of lay opinion evidence. The conclusion: In this Ontario Court of Appeal decision, the court set aside convictions and ordered a new trial for Mr. Jenkins, who had previously been convicted on several charges pertaining to drug traficking. The full story: In the appeal, Mr. Jenkins’s counsel put forward that fve police oficers gave what’s called “lay opinion evidence” that was improperly admitted in the initial trial. Lay opinion evidence is opinion evidence not given by an expert, and it is only permissible under a limited number of circumstances outlined in the case of Graat v. The Queen. Here, the opinion evidence in question was that these oficers found Mr. Jenkins’s conduct to be consistent with drug traficking. The question before the court was whether these opinions could be permissible. In each instance, the oficer had been asked a question like “What do you make of this behaviour in your experience?” and ofered his opinion thereafter. Justice Copeland, relying on a previous case (R. v. Nguyen, 2023 ONCA 531), pointed to the various issues with this evidence. First, the Crown had not sought to qualify these surveillance oficers as oficial experts on indicators of drug traficking. Next, the jury could weigh the interactions as described by the officers without their additional conclusive opinions. Without those directly stated opinions, the officers could still clearly convey what they had seen, and the jury could still understand what was put before them. However, to distinguish this case from Nguyen and others, Justice Copeland declined to apply the curative proviso and ordered a new trial. The curative proviso would allow for the admission of the opinion evidence anyway, if the Crown can meet the burden of showing a minor or harmless error or if they show that the case was so overwhelming against the person appealing their conviction (here, Mr. Jenkins). Justice Copeland held that the signifcance of having this trial in front of a jury without the trial judge’s caution about the evidence showed great potential for misused evidence worthy of a new trial. Weighing the whole of the error, Justice Copeland saw that it was not minor or harmless. Further, to the use in the instance of an overwhelming case against Mr. Jenkins, Justice Copeland found that the number of live issues, including questions of credibility, meant that there was a strong, but not overwhelming, case. For that reason, the appeal was allowed, the convictions set aside, and a new trial was ordered. By: Gabe Nisker
The takeaway: Know your rights to be tried in the oficial language of your choice, whether that be English or French. First instance judges must make the accused aware of their Section 530(3) rights. The full story: In this case, Mr. Tompouba, a bilingual Francophone, brought an appeal on the grounds that there was an error in the application of the law. He claimed that he would have preferred to have his trial in French and that he did not receive the free and informed choice he should have under Section 530(3) of the Criminal Code. Section 530(3) enshrines an accused’s right to be advised of their fundamental right to be tried in the language of their choice (English or French) and how it is to be exercised properly. This section of the Criminal Code puts upon a judge a two-pronged duty, requiring them to ensure the accused is properly informed. They must take steps to make the accused aware of their rights and make them aware of how to exercise them. A frst appearance judge who fails to make the accused aware infringes this right. A breach of this right is considered an error of law under s. 686(1)(a)(ii) of the Criminal Code: If the frst appearance judge doesn’t make the accused aware of their right, this is an improper application of a legal rule, which gets in the way of the trial court’s proper judgment. The Crown can then relieve their burden using a “curative proviso,” which allows that the Court can dismiss any appeal if the Crown can show that no prejudice was caused by the error or irregularity. Accordingly, in this case, the frst instance judge failed to make Mr. Tompouba aware of his rights. Then, in the appeal, the Court of Appeal judge improperly placed the burden of proving the infringement of his rights on Mr. Tompouba. The Supreme Court re-emphasized that the curative proviso places the burden on the Crown to show no prejudice. The Supreme Court of Canada held that it ultimately cannot be concluded on a balance of probabilities that Mr. Tompouba would have elected to conduct his trial in English had he had the choice, and they granted his appeal, ordering a new French trial. The Court found that the Crown had not relieved their burden and that there may have been some prejudice caused. The Case: R. v. Kruk, 2024 SCC 7 In short: Appellate courts should adhere to established legal principles when assessing a trial judge's credibility or reliability assessments, considering whether alleged assumptions are indeed findings based on evidence, and applying the appropriate standard of review, such as correctness, for errors of law like reliance on myths, stereotypes, or biases. The Bottom Line: Per Wagner C.J. and Côté, Martin, Kasirer, Jamal and O’Bonsawin JJ: The rejection of a proposed rule against ungrounded common-sense assumptions underscores its divergence from established legal principles, particularly in sexual assault cases, where myths and stereotypes warrant distinct treatment. This rule, misaligned with the protective framework for sexual assault complainants, would extend questioning into irrelevant sexual history, potentially reviving prejudice. It contradicts appellate deference to trial judges and risks appellate overreach into credibility assessments. Appellate courts should adhere to existing standards, distinguishing palpable errors from reasonable assumptions, ensuring fairness without undermining trial judge expertise. Errors of law, such as reliance on stereotypes, warrant correction, but unsubstantiated assumptions demand deference, safeguarding the integrity of trial proceedings. Practice Point: At trial, take a coherent position regarding the difference between facts and assumptions. Consider using Rowe's proposed framework to protect the record on appeal: (1) What generalized expectation can the Judge rely on in their reasoning process? (2) Outline why it is (or isn't) reasonable to rely on this particular general expectation in the unique circumstances of this case? (3) Be clear that the Trial Judge cannot rely on the generalized expectation as itself a conclusive and indisputable fact. The Case:
R. v. Bykovets, 2024 SCC 6 In short: REP in your IP. The Bottom Line: Per Karakatsanis, Martin, Kasirer, Jamal and Moreau JJ.: In the contemporary digital era, Section 8 of the Charter needs to safeguard Canadians’ online privacy effectively, which includes protecting their IP addresses. IP addresses serve as the vital connection between an individual’s online actions and their identity, thus warranting a reasonable expectation of privacy. Consequently, any state request for an IP address constitutes a search under Section 8 of the Charter. Practice Point: There are likely many cases currently in the system in which ITOs were premised on IP addresses obtained without judicial authorization. Applying the doctrine of automatic excision -- recently reaffirmed in R. v. Zacharias -- the IP address must be excised from such a warrant leaving it bereft of the requisite RPG. |